California Shifts to ‘Yes Means Yes’ Standard for College Sex

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Gov. Jerry Brown signed the "affirmative consent" bill into law on Sunday. Activists have hailed the measure as an important step in clarifying the standard colleges use in investigating sexual-assault cases.
September 29, 2014

Gov. Jerry Brown of California signed legislation on Sunday that explicitly requires colleges and universities that receive state funds to define consent in students’ sexual encounters in terms of "yes means yes" rather than the traditional "no means no."

Mr. Brown’s signing of the "affirmative consent" bill ushers in a new era in the debate about how to curb sexual assaults on college campuses.

A 2007 study by the National Institute of Justice found that one in five women will be sexually assaulted in college. Congress, state lawmakers, and activists have recently been applying intense pressure on colleges to compel them to strengthen their policies against sexual assault.

At California colleges, students must now ensure they have the affirmative consent of their partners at the beginning of a sexual encounter and maintain that consent throughout the activity. The law states that consent "can be revoked at any time." The absence of "no," the law says, is insufficient to indicate consent.

The bill’s supporters, who include activists who this month delivered a petition to Mr. Brown’s office urging him to sign the bill, have hailed the measure as an important step in clarifying the standard colleges should use in investigating sexual-assault cases. Some critics have warned, however, that the law tramples on the due-process rights of accused students.

Defining Sexual Consent

The debate shows that defining consent can be tricky. The Chronicle compiled a sampling of colleges’ sexual-assault policies, highlighting the differences and similarities in how they define consent.

'Case-by-Case Basis'

Some institutions, like Oberlin College, recognize the nuances and difficulties in defining consent and don’t try to define the term broadly. Instead, Oberlin says that consent must be judged on a "case-by-case basis." Like many other colleges, Oberlin notes that consent cannot be given when someone is asleep, unconscious, or intoxicated.

The United States Military Academy at West Point, N.Y., like other military-service academies, has drawn scrutiny over its response to reported sexual assaults. West Point’s policy states that sexual violence is "incompatible with Army values" and punishable under state and federal law and the Uniform Code of Military Justice. The academy’s policy states that sexual assault occurs when a victim cannot or does not give consent, but the policy does not offer a precise definition of the term.

When asked about West Point’s definition of consent, Francis J. DeMaro Jr., a spokesman for the service academy, provided The Chronicle with a slide from a rape-prevention program that cadets and staff members are required to attend annually. "Consent will not be deemed or construed to mean the failure by the victim to offer physical resistance," the slide states.

Some colleges, similar to California’s affirmative-consent law, acknowledge that the absence of a verbal "no" does not mean the same as "yes." The policies at private institutions like Amherst College and Yale University echo the rules at public colleges like the University of North Carolina at Asheville and the University of Wisconsin at Madison.

"Consent is an understandable exchange of affirmative actions or words which indicate an active, knowing, and voluntary agreement to engage in mutually agreed upon sexual activity," reads Asheville’s policy.

Later, it says, "a person is not required to physically resist sexual conduct in order to show lack of consent."

Amherst’s sexual-misconduct policy includes a lengthy statement that says consent must be "knowing and voluntary," consisting of an "outward demonstration" that an individual has chosen to have sex.

‘Effective Consent’

The College of William & Mary is among colleges that have "effective consent" policies. William & Mary’s policy defines consent using the following guidelines, among others:

  • Is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested an understandable agreement between them to do the same thing, in the same way, at the same time, and with one another
  • Is not merely the absence of a verbally stated "no."
  • Is never final or irrevocable.

Some colleges, like Sarah Lawrence College and Clark University, acknowledge the different ways that students can obtain consent, through verbal and nonverbal means.

"Ideally, consent is given verbally," Sarah Lawrence’s policy states. "However, consent (or lack of consent) may also be expressed through gestures, body language, and/or attitude. For example, active reciprocation could express consent, and pushing someone away, or simply moving away, could express lack of consent."

Clark University uses similar language on a web page called "Consent 101 or: Doing It With the Lights On." Clark states that it "strongly encourages" students to communicate their intentions verbally, but acknowledges that people can express consent nonverbally by "nodding, removing clothes, proceeding with the proposed activity," and other means.